PARIS v. ASTRUE

Filing 12

MEMORANDUM OPINION to the Order granting in part and denying in part Plaintiff's Motion for Judgment of Reversal and denying Defendant's Motion of Judgment Affirmance. Signed by Judge Gladys Kessler on 8/29/12. (CL, )

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ DIESA PARIS, Plaintiff, : : : : : Civil Action 11-2163 (GK) : : : : : v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. __________________________________ MEMORANDUM OPINION Plaintiff, Diesa Paris, brings this action seeking judicial review of a final decision of the Commissioner of the Social Security Administration (“Commissioner”) pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), denying her claims for Disability Insurance Benefits (“DIB”) pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 42 et seq. This matter is before the Court on Plaintiff’s Motion for Judgment of Reversal [Dkt. No. 8] and Defendant’s Motion for Judgment of Affirmance [Dkt. No. 10]. parties’ entire cross-motions, record herein, the and Upon consideration of the administrative for the record, reasons stated and the below, Plaintiff’s Motion for Judgment of Reversal is hereby granted in part and denied in part, and Defendant’s Motion for Judgment of Affirmance is hereby denied. -1- I. BACKGROUND Plaintiff Washington, DC. is a fifty-year-old Administrative Record woman who (“AR”) at resides 37, in 102-105 [Dkt. No. 3]. She has a high-school education and no specialized training. AR at 38, 136. Plaintiff last worked full time on January 31, 2007 as a retail manager. See AR at 102, 132. She has been diagnosed with systemic lupus erythematosus, psoriatic arthritis, and major depressive order. AR at 15. As a result of these disorders, Plaintiff filed an application for Disability Insurance Benefits pursuant to Title II of the Social Security Act on February 25, 2008. Plaintiff’s claim was denied initially and upon reconsideration. On April 1, 2010, a hearing regarding Plaintiff’s alleged disability was held in front of an Administrative Law Judge (“ALJ”). On June 11, 2010, the ALJ denied Plaintiff’s request. Thereafter, Plaintiff requested the Appeals Council to review the decision of the ALJ. On October 3, 2011, the Appeals Council affirmed the decision of the ALJ. A. Disability Determination Process In order to qualify for disability insurance benefits, an individual must prove that she has a disability that renders her unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment” for a period of “not less than 12 months.” 42 U.S.C. §§ 423(a)(1) & -2- (d)(1)(A). The claimant must support her claim of impairment with “[o]bjective medically medical acceptable techniques.” 42 evidence” clinical U.S.C. that is “established laboratory 423(d)(5)(A). § or In by diagnostic addition, the impairment must be severe enough to prevent the claimant from doing her previous education, and work work and work experience commensurate that exists with in her the age, national economy. 42 U.S.C. § 423(d)(2)(A). The Social Security Administration (“SSA”) uses a five-step evaluation process to determine whether a claimant is disabled, thus qualifying for benefits. 20 C.F.R. § 404.1520(a)(1). A clear determination of disability or non-disability at any step is definitive, and the process ends at that step. 20 C.F.R. § 404.1520(a)(4). In the first step, a claimant is disqualified if she is currently engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). In the second step, a claimant is disqualified if she does not have a “severe medically determinable physical or mental impairment” that is proven “by medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. §§ 404.1508 & 404.1520(a)(4)(ii). In the third step, a claimant qualifies for benefits if her impairment(s) meets or equals an impairment listed in 20 C.F.R. § 404, subpart P, appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii). Between the third and fourth step, -3- the SSA uses the entire record to make a determination of the claimant's residual functional capacity (“RFC”), which is “the most [the claimant] can still do despite [the] limitations” created by the impairment. 20 C.F.R. §§ 404.1520(a)(4) & 404.1545(a)(1). In the fourth step, a claimant is disqualified if her RFC shows that she is still able to do her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). In the fifth step, a claimant is disqualified if her RFC shows that she is capable of adapting to “other work that exists in the national economy.” 20 C.F.R. §§ 404.1520(a)(4)(v) & 404.1545(a)(5)(ii). If the claim survives these five steps, then the claimant is determined disabled and qualifies for benefits. 20 C.F.R. § 404.1520(a)(4)(v). B. The ALJ’s Ruling The ALJ applied the sequential five-step process described, supra, and determined that, while Plaintiff suffered from severe impairments including depression, psoriatic arthritis, and systemic lupus erythematosus, she was not disabled within the meaning of the Social Security Act. The issues in dispute in this case arise in steps four and five of the assessment process. At step four of the assessment, the ALJ determined that Plaintiff had the RFC to perform a range of sedentary work so -4- long as she had a “sit/stand option” 1 and was limited to unskilled tasks involving no more than occasional contact with the public. AR at 24. At step five of the evaluation process, the ALJ relied on a vocational expert’s testimony to determine that Plaintiff “is capable of making a successful adjustment to [] work that exists in significant numbers in the national economy.” Id. at 26. II. STANDARD OF REVIEW A district court is limited in its review of the SSA’s findings to determining whether those findings are based on substantial evidence. 42 U.S.C. § 405(g); Butler v. Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004); Poulin v. Bowen, 817 F.2d 865, 870 (D.C. Cir. 1987). Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted), requiring “more than a scintilla, but ... something less than a preponderance of the evidence.” Fla. Gas Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir. 2010) (citation omitted). A court must “carefully scrutinize the entire record” but may not reweigh the evidence or supplant the SSA's judgment of 1 The ALJ specified that “[t]he claimant needs a sit/stand option; that is, she should not be required to stand for more than 20/30 minutes before being permitted to sit, or be required to sit for more than 20/30 minutes before being permitted to stand.” AR at 24. -5- the weight of the evidence with its own. It must only review whether the ALJ's findings are based on substantial evidence and whether the ALJ correctly applied the law. Butler, 353 F.3d at 999; Davis v. Shalala, 862 F.Supp. 1, 4 (D.D.C. 1994); Davis v. Heckler, 566 F.Supp. 1193, 1195 (D.D.C. 1983). Finally, substantial deference should be given to the ALJ's decision, but the evidence should be read in the light most favorable to the claimant. See Davis, 862 F.Supp. at 4; see also Simms v. Sullivan, 877 F.2d 1047, 1050 (D.C. Cir. 1989) (reviewing court must determine whether the Commissioner, acting through the ALJ, "has analyzed all evidence and has sufficiently explained the weight he [or she] has given to obviously probative exhibits...."). III. ANALYSIS A. The ALJ’s Evaluation of Dr. Lumpkins’ Opinion The administrative record contains progress notes and opinions from Tanya Lumpkins, M.D., a rheumatologist and one of Plaintiff’s treating physicians. Plaintiff argues that the ALJ did not properly evaluate Dr. Lumpkins’ opinions because he: (1) failed to consider whether her opinion discuss the was entitled proper to factors controlling for the weight; evaluation (2) of did not medical opinions; and (3) did not evaluate many of the limitations noted in her January 18, 2008 opinion. Pl.’s Mot. at 6-8. Defendant -6- responds that: (1) the ALJ accurately discussed when a treating physician’s opinion should be afforded controlling weight; (2) the ALJ properly considered relevant regulatory factors when weighing Dr. Lumpkins’ opinion; and (3) to the extent the ALJ failed to properly evaluate any portion of Dr. Lumpkins’ opinion, such error does not warrant remand. Def.’s Mot. at 15, 18-19. The case law in this Circuit is clear that an ALJ must accord substantial weight claimant’s treating (“Because a to the physician. claimant’s reports Butler, treating and opinions 353 F.3d physicians of at have a 1003 great familiarity with [her] condition, their reports must be accorded substantial weight.”) (internal citation omitted) (internal quotation omitted). A treating physician’s report is “binding on the fact-finder unless contradicted by substantial evidence.” Id. (internal citation omitted) (internal quotation omitted). Defendant is correct that the ALJ properly accorded Dr. Lumpkins’ opinion significant weight. After discussing the regulatory instructions for weighing medical opinions, including when a treating physician’s opinion is entitled to controlling weight (AR at 19), the ALJ discussed Dr. Lumpkins’ medical opinion and, consistent with the law of this Circuit, accorded it “significant weight.” AR at 20; see Payne v. Shalala, Civ. A. No. 93-0288, 1993 WL 405757 at *3 (D.D.C Sept. 24, 1993) (“The -7- ALJ was obligated to give significant weight to the opinion of [] Plaintiff’s treating physician [] so long that opinion was supported by acceptable laboratory and clinical diagnostic techniques and was not contradicted by substantial evidence in the record.”). Defendant argument, the is also ALJ was correct not that, required contrary to to discuss Plaintiff’s each of the relevant regulatory factors when deciding what weight to give Dr. Lumpkins’ opinion. The regulation at issue states that a ALJ will “consider weight [to] all give of to the any following medical factors in opinion.” deciding 20 C.F.R. the § 404.1527(d) (emphasis added). Notably, the regulation requires the ALJ to “consider” certain factors, but does not require the ALJ to recite and discuss each of the factors in the written decision. Plaintiff points to no authority saying that the ALJ must do so. However, properly Plaintiff evaluate is certain correct relevant that the portions ALJ of failed Dr. to Lumpkins January 18, 2008 opinion. For instance, the ALJ did not discuss, at any point in the five-step evaluation process, Dr. Lumpkins’ opinion that Plaintiff could not bend, twist or kneel and could only occasionally move her neck, reach at shoulder level, stand, walk, and perform repetitive movements. AR at 211. The ALJ was required to explain why he paid no attention to Dr. Lumpkins’ -8- opinion on these issues. Butler, 353 F.3d at 1003 (“We [] require an ALJ who rejects the opinion of a treating physician [to] explain his [or her] reasons for doing so.” (internal citation omitted) (internal quotation omitted). Accordingly, upon remand, the ALJ must explain the weight he attaches to Dr. Lumpkins’ opinion, and if he disregards any of her conclusions, he must explain his reasons for doing so. B. The ALJ’s Assessment of Plaintiff’s RFC At step four of the disability determination process, the Commissioner is required to show that a claimant’s RFC allows her to perform 416.920(f)(1). other work. Assessing evidence, which physical or 20 RFC is may include the mental demands of C.F.R. based §§ upon 404.1520(f), all relevant claimant’s ability work observations and to meet of limitations by family and friends. 20 C.F.R. § 416.945. Plaintiff argues supported by evaluate medical that substantial the ALJ’s evidence opinions that RFC because assessment the conflicted ALJ with is not did not his RFC assessment. Pl.’s Mot. at 11. Plaintiff further argues that the ALJ was required “to perform a more detailed assessment of the Plaintiff’s capacity to perform the mental demands of work.” Id. at 14 (emphasis in the original). Defendant responds that, to the extent the ALJ failed to evaluate certain medical opinions, such error does not warrant reversal or remand. Def.’s Mot. at -9- 18-19. Defendant further argues that “the ALJ correctly evaluated Plaintiff’s mental functioning as the regulations at 20 C.F.R. § 404.1520a direct. That is, [the ALJ] made findings in the four supported broad by areas of substantial mental evidence, functioning and that he to to that cited required were evidence.” Def.’s Mot. at 16. An ALJ’s discussion basis decision of “findings therefor, discretion on evidence [ on rationale, all presented 557(c)(3)(A)(1988). regarding is and conclusions, the material on the the “When the functions ] for statutorily that record, ‘[t]he issues the of record.” ALJ the and ALJ fact, at some explain can law U.S.C. a must judiciary reasons 5 arrives contradicts include or or § conclusion part scarcely a his of the [or her] perform its assigned review function ... without some indication ... [as to] whether [the] evidence was rejected rather than simply ignored.’” Ross v. Astrue, 636 F. Supp. 2d 127, 133 (D.C. Cir. 2009) (citing Brown v. Bowen, 794 F.2d 703, 708 (D.C. Cir. 1986)). “The ALJ has a duty to explain why [she] either ignored or rejected contradictory evidence.” Thomas v. Astrue, 677 F. Supp. 2d 300, 309 (D.D.C. 2010) (citing See v. Wash. Metro. Transit Auth., 36 F.3d 375, 384 (4th Cir. 1994) (“[W]hen faced with evidence in the record contradicting his [or her] conclusion, an ALJ must affirmatively reject that contradictory -10- evidence and explain his rationale for doing so.”) (emphasis added)). Plaintiff evaluate is evidence correct that that the contradicted ALJ his failed RFC to properly assessment. For instance, the ALJ acknowledged Dr. Cott’s finding that Plaintiff had experienced one or two episodes of decompensation, each of extended duration. AR at 19. The ALJ also acknowledged that Dr. Cott’s assessment was affirmed by Dr. Nachbahr. Id. However, at step four concluded, of the without disability determination explanation, that “[t]he process, the ALJ record does not disclose any episodes of decompensation of extended duration,” id. at 23, which was directly contrary to the opinions of Dr. Cott and Dr. Nachbahr. The ALJ’s conclusory determination, with no explanation as to why he rejected or ignored their opinions is insufficient. Similarly, the ALJ failed to explain why he chose not to consider those portions of Dr. Garmoe’s report that contradicted the his RFC assessment. More specifically, Dr. Garmoe found that Plaintiff was severely depressed, discouraged and withdrawn, and that persons with profiles such as Plaintiff’s usually had marked distress and severe impairment in functioning. AR at 441. However, the ALJ did not reference this part of Dr. Garmoe’s report in his RFC assessment, let alone affirmatively reject it and explain his rationale for doing so. -11- In sum, the ALJ failed to properly evaluate evidence that contradicted his RFC assessment. Therefore, upon remand, the ALJ must reconsider provide an the medical explanation testimony for in rejecting its any entirety, evidence and that contradicts his determination. C. The ALJ’s Reliance Vocational Expert Upon the Testimony of the At step five in the disability determination process, if the claimant is found unable to do any work she has done in the past because of severe impairment, the ALJ must consider her RFC, age, education, and work experience to see if she can do other types of work. 20 C.F.R. § 404.1520(f)(1). If there are non-exertional limitations in question, the ALJ may rely on the expertise of ascertaining 416.966(e). a a In vocational expert claimant’s RFC. 2 doing the so, 20 ALJ (“VE”) C.F.R. may pose to assist in §§ 404.1566(e), a hypothetical question to the VE, communicating the claimant’s age, education, work experience and RFC. If the hypothetical put to the VE is flawed or contains omissions, it undermines “the foundation for the expert’s ultimate conclusion that there are alternative jobs appellant can do.” Simms v. Sullivan, 877 F.2d 1047, 1051 (D.C. Cir. 1989). 2 “The Secretary must introduce expert vocational testimony to prove that a significant number of jobs are available for the claimant.” Smith v. Bowen, 826 F.2d 1120, 1122 (D.C. Cir. 1987). -12- Plaintiff fatally argues defective overlooked the that the because ALJ’s question the set restrictions ALJ forth to “ignored by the or Dr. VE was otherwise Lumpkins, the Plaintiff’s treating physician, without explanation.” Pl.’s Mot. at 17. Plaintiff further argues that the ALJ “failed to properly address the persistence, Plaintiff’s or pace in limitations his on hypothetical concentration, question to the vocational expert.” Id. at 17-18. Defendant responds that the ALJ’s step five findings are supported by substantial evidence, and that to hypothetical the extent posed to that the there are none of VE, any errors those with errors the warrant remand. Def.’s Mot. at 18-20. An ALJ who looks to the opinion of a VE at stage five of the disability determination process “must accurately describe the claimant’s physical impairment in any question posed to the expert.” Butler, question to treating physician’s reason to the 353 VE F.3d must at “present diagnosis disregard the 1006. a ALJ’s faithful unless physician’s The the hypothetical summary ALJ of provides conclusions.” the good Lockard v. Apfel, 175 F. Supp. 2d 28, 33 (D.D.C. 2001). Plaintiff is correct that the ALJ’s hypothetical did not fully and accurately describe Plaintiff’s impairments. In fact, Defendant concedes hypothetical that question a the ALJ number -13- failed of the to include in his vocationally-relevant restrictions opinion. 3 set See forth Def.’s in Mot. Dr. at Lumpkins’ 18. January Despite this 18, 2008 concession, Defendant contends that Plaintiff has demonstrated no basis for remand because, even accepting all of the limitations set forth by Dr. Lumpkins, Plaintiff would still be capable of performing the jobs identified by the VE. Defendant’s argument has no merit because the ALJ “must accurately describe” the claimant’s impairments unless he provides good reason for disregarding the physician’s added). conclusions. The ALJ did Butler, not 353 F.3d accurately at 1006 describe (emphasis Plaintiff’s impairments, nor did he explain why he disregarded Dr. Lumpkins’ opinion. Furthermore, the ALJ found in his RFC that Plaintiff has “moderate” limitations in concentration, persistence or pace, but his hypothetical question to the VE stated that Plaintiff had only “mild” limitations in concentration persistence or pace. See AR at 23, 24, 55. These deficiencies in the ALJ’s hypothetical undermine the foundation for the VE’s conclusion. Accordingly, upon remand, if the ALJ elects to call a VE, 3 the hypothetical posed must As discussed, supra, Dr. Lumpkins concluded that Plaintiff could not bend, twist or kneel and could only occasionally move her neck, reach at shoulder level, stand, walk, and perform repetitive movements. AR at 211. -14- describe the Plaintiff’s impairments accurately in light of objective medical testimony. IV. CONCLUSION Upon consideration of the parties’ cross-motions, the administrative record, and the entire record herein, and for the reasons set forth in this Memorandum Opinion, Plaintiff’s Motion for Judgment of Reversal is hereby granted in part and denied in part, and Defendant’s Motion for Judgment of Affirmance is hereby denied. This case is hereby remanded to the Commissioner for rulings in steps four and five of the disability determination process. In consideration of these steps, the entire medical record, including Dr. Lumpkins’ January 18, 2008 opinion, must be given due regard. /s/________________________ Gladys Kessler United States District Judge August ___, 2012 Copies to: attorneys on record via ECF -15-

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